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Home » Caring for Your Aging Parents: How Elder Law Can Help

Elder Law Care for Your Parents: Setting the Stage for A Secure Plan

Many adult children are seeing their parents reach the 65-year-old and older range, with the population of people over 65 expected to rise from 58 million to 82 million by 2050. As parents age and benefit from the assistance of their children, it can be overwhelming to know what elder law care for your parents might look like, and the thought of what an elder law attorney does might not have ever crossed the mind.

Providing basic care for your parent may include:
  • Driving them to the doctor or grocery store
  • Helping with basic care needs
  • Assisting parents with meeting the requirements for Medicaid Long-Term Care
We’ve been helping clients since 2006 and have office locations in Spokane, Tri-Cities and Seattle.
If you want to help your parents leave behind a legacy they prefer, you can go beyond the basics of care and help them create an estate plan that allows them to preserve and protect assets.

Can Adult Children Help Their Aging Parents with Elder Care and Estate Planning?

Estate planning for aging parents starts with a heart-to-heart talk with your parents. If your parents are still in good health, they have full say of their estate and care when they get older. You need to be prepared for a difficult conversation because it’s never easy to discuss “what-ifs” with your parents.
Speaking with an elder law attorney together can help you and them understand options for your parents that allow them to:
  • Maintain control of assets
  • Outline how they want their assets to be distributed
  • Plan for Long-Term Care
  • Use Medicaid to pay for care
Supporting aging parents starts with a consultation with an elder law attorney who will help your parents create an estate plan that protects their assets, wishes and provides for medical needs.

What Types of Documentation Can Be in Place to Support Aging Parents?

Elder law planning for your parents does not mean moving them into a care facility. Many parents are still in good health, mobile and can care for themselves for much of or all of their lives.
What elder law and estate planning do together is:
  • Create legal documents that protect parents and their estate
  • Put your parents’ wishes on paper so that there is no “guessing” what they would have wanted
  • Help prepare for Long-Term Care and Medicaid planning options
Documents that we recommend you put in place to support aging parents – in any health condition – are:

Will

A Will is the foundation of many estate plans and allows your parents to direct and protect their assets:
  • Future transfer of assets to beneficiaries
  • Decide who will care for pets
  • Name an estate executor
  • Make charitable provisions
  • Exclude people from inheritance
  • Create a trust for grandchildren
  • Create an asset protection supplemental needs trust for the surviving spouse to protect assets against Medicaid spend-down
Wills also put your parents’ wishes into a legal document, reducing intrafamily arguments over how the estate is handled.

Durable Power of Attorney

If your parents cannot make decisions on their own for any reason, a Durable Power of Attorney (DPOA) allows them to authorize someone else to act on their behalf. There are two main types of Powers of Attorneys:
A medical DPOA involves authorizing a trusted person to make medical decisions on your parents’ behalf, while a financial DPOA grants a person the ability to manage the financial matters of another person.

Advance Healthcare Directive

Even if you have DPOAs in place, an advance healthcare directive, also known as a Living Will, is recommended because it allows your parents to give instructions for the:
  • Type of medical care they receive
  • Extent of medical care they receive
For example, your parents can choose quality of life over duration with use of heroic measures only if the medical intervention is likely to be successful.

Medicaid Trust

At some point, your parents will likely need Long-Term Care. Medicaid can help cover the cost of care, but there are strict financial rules for eligibility. Meeting the  asset (resource) requirements can be challenging.
A Medicaid trust can help your parents prepare for Long-Term Care and future eligibility. Assets can be transferred to the trust five years before applying for Medicaid. Washington, however has strict rules and does not allow the parents to retain beneficial  use of the trust property. Transfers to a Medicaid trust, however, are often used to protect legacy property, such as the family cabin or farm.

Special Needs Trust

A Special Needs Trust preserves assets for a disabled person and does not interfere with eligibility for  government needs-based benefits.
There are different types of special needs trusts:
  • First-party trusts: known as d4A or d4C trusts, which have a pay back provision to the state or must remain in the trust for other disabled persons. The disabled person puts their own money into this type of trust. These trusts are typically used for persons who have suffered an accident and recover a settlement or judgment against the at-fault person. However, first-party special needs trusts sometimes are useful in Medicaid planning for Long-Term Care benefits for parents who require Long-Term Care.
  • Third-party: A specific type of special needs trust is created by the will of the first spouse to pass for the benefit of the surviving spouse. Known as an asset protection supplemental needs trust, the surviving spouse inherits in trust, assets of the deceased spouse without those assets interfering with Medicaid eligibility. Thus, each parent will have a will with this special trust, ensuring that the surviving spouse will never become impoverished and may keep substantial assets even under Medicaid’s strict financial rules.
Any special needs trust must be set up properly to ensure that assets and benefit eligibility are preserved.

Why Are These Documents Important?

Estate planning can be complex and includes essential planning documents. They serve as the foundation to ensure your parents’ wishes are carried out and assets are preserved.

Specifically, these documents allow your parents to:

Direct How Their Assets Will Be Distributed

Trusts and wills empower your parents to direct how their assets will be distributed after death.
Without a will, your parents’ remaining assets will be distributed according to Washington’s intestacy laws. For some families, this may be okay. However, most individuals would prefer to have a say in how their property is divided amongst their heirs.
For example, if your parents have family heirlooms or possessions that they want to pass down to particular family members, drafting a will ensures these wishes are carried out. Otherwise, these items may be inherited by individuals they would not have chosen.
A will also is the only way that a couple may protect assets for the surviving spouse against Medicaid spend down rules.

Prepare for Long-Term Care Needs

An estimated 70% of adults aged 65 and older will require Long-Term Care at some point. Costs for care can easily exceed $150,000 per year.
Medicaid is the primary government benefit that covers Long-Term Care costs. However, the laws are complex. Strict  asset limitations can make it challenging to meet eligibility requirements.
Through careful and strategic elder law planning, your parents can prepare for these costs through Medicaid Asset Preservation Strategies®.
It’s important to prepare for these costs now while your parents are still healthy. Medicaid has a five-year look-back period, which means that if assets are transferred or gifted within the previous five years of applying, they will be ineligible for benefits.
Medicaid does have a policy against spousal impoverishment, however. Thus, Medicaid Asset Preservation Strategies® may be implemented at the time of need, but only if the couple has in place the right estate plan, with documents prepared by an elder law attorney who is knowledgeable and skilled in Medicaid planning.
Planning for Long-Term Care costs is crucial, and this is a highly complex and nuanced area of law. An experienced attorney who focuses on elder law, and Medicaid planning specifically, can help you navigate care for your parents, preserve assets and use government benefits to pay for care without impoverishment.

Carry Out Wishes for Medical Care

A Durable Power of Attorney and Advance Healthcare Directive allow your parents to give instructions for their end-of-life care. A Durable Power of Attorney will appoint someone to carry out the instructions stated in the advance directive.
Having these documents in place alleviates the guilt and stress that can arise from having to make difficult end-of-life care decisions.

How Will ELG Help Support the Elder Law Care For Your Aging Parents?

Every family is unique. Your parents have their own specific needs and goals. We’re here to help ensure those needs and goals are met.
At ELG Estate Planning, we focus exclusively on estate planning and elder law and can help you understand options for your parents.
We are committed to helping families plan for the future and the unexpected.
If you are ready to help your parents create an estate plan, contact us to schedule a consultation.
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